Judicial Committee of the Privy Council
| Published date | 01 August 1992 |
| Date | 01 August 1992 |
| DOI | 10.1177/002201839205600307 |
| Subject Matter | Judicial Committee of the Privy Council |
JUDICIAL
COMMITTEE
OF
THE
PRIVY
COUNCIL
EFFECT OF PRE-TRIAL
PARDON
Phillip vDPP
In 1788, in The Federalist, Alexander Hamilton set out the reason for the
President's power to pardon: 'in seasons of insurrection and rebellion,
there are often critical moments, when a well-timed offer of pardon to the
insurgents or rebels may restore the tranquillity of the commonwealth'.
Lord Ackner cites these words, which were so apt to describe events in
Phillip v
DPP
[1992] 2 WLR 211, where, 'for the first time' the question
was how effect can be given to a valid pre-trial pardon. The board had to
consider two sets of appeals, one under the Constitution of Trinidad and
Tobago and the other on an application for habeas corpus, which appeals
concerned no less than 114 appellants. An insurrection resulted in the
Prime Minister and others being held captive by the insurgents. A valid
pardon was granted to the insurgents in return for the liberation of the
captives; but the insurgents were then arrested and held in custody and
were charged with treason, murder and other offences. They applied for
redress under s 14 of the Constitution on the ground that, as holders of a
free pardon, their arrest, detention and prosecution infringed their right
to liberty and security of the person and the right not to be deprived
thereof except by due process of law. Some applied for habeas corpus on
the ground that their detention was illegal by reason of the pardon. The
constitution has adopted a new provision, copied from that of the US
(where it was accepted as valid in Murphy v Ford (1975) 390 F Supp 1372)
that the President may grant apardon before aperson is charged with any
offence. Both grounds of applications were refused in the local courts, on
the ground that aperson who relies on a pardon can, under the Criminal
Procedure Act, do so only by way of a plea in bar on arraignment. There
was therefore no infringement of constitutional rights and it followed that
no court had jurisdiction to grant either application.
Since the trial of the accused would not take place for some years, the
result of the local courts' decisions was that the applicants would remain
in custody for many years on charges for which it must be assumed that
they had been validly pardoned. It was for this reason that the applicants
claimed that their detention was a breach of their 'constitutional human
rights and freedoms'. The applicants for habeas corpus claimed that, as
their detention was in breach of the terms of the procalimed amnesty, it
was incumbent on the High Court to investigate the causes of that
detention. The net issue was, therefore, whether the beneficiary of a
pardon may be arrested and charged with offences covered by the pardon.
The local courts answered that question in the affirmative on the ground
that the effect of a pardon was limited to its use by way of a plea in bar on
arraignment. The operation of the plea in that
way-and
only in that
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